Recently, comments on C-SPAN’s BookTV sparked my interest, because Appellate Judge Frank Easterbrook said something very revealing. He talked about how he and then-solicitor general Robert Bork crafted the legal reasoning that now is the dominant precedent that prohibits or stifles desegregation across America. And no one noticed. Segregation and the laws around it deserve more discussion.

This is a clip I made of Judge Easterbrook’s comments, which reveal a history few know about (c-spanvideo.org allows you to make your own clips now!) During a discussion of Robert Bork’s last, posthumously published book “Saving Justice,” Frank Easterbrook reveals how he and Robert Bork’s reasoning that school segregation “by personal choice” is not a violation, though so inflammatory in the ’70s the DOJ ordered it shredded, is now the opinion affirmed by the Supreme Court.

Even Robert Bork thought the anti-busing opinion should be shredded at the time; according to Judge Easterbrook, Bork was worried it would empower violent bigots in the ongoing Boston busing conflict.

Somehow, this opinion was unearthed from the bowels of hell and embraced by the Supreme Court. The Supreme Court has again and again affirmed this radical-right reasoning that school segregation doesn’t hurt anyone and is just fine as long as the state isn’t forcing it and it’s “segregation by private choice.”

The nail in the coffin for desegregation seemed to come from Bork and Easterbrook’s brief.

With my own eyes, I’ve seen the retrenchment of segregation in the South. My hometown of Mobile, Alabama was once a good example of relative-racial harmony; Mobile boasts it was the only major city in the Deep South never to suffer race riots. Leaders on both sides of this peaceful, heavily Catholic city made negotiation work instead of the conflagration everywhere else. My college, Spring Hill College (“The Jesuit College of the South”) was praised in MLK’s Letter from a Birmingham Jail for being the first university in the Deep South to integrate, in 1954. When the KKK tried to burn a cross (highly blasphemous) on campus in response, students chased them off with rocks and baseball bats, a couple of Jesuit priests in tow. We showed how possible integration could be; we showed that not everybody in the Deep South supported the Klan. (Also, people tend to see the world through the lens of their hometown values and upbringing, and this post gives you insight into mine, where I am coming from).

It’s been sad watching my hometown leave behind their powerful legacy of peaceful desegregation without discussion, following the other Southern cities. Accelerating subsequent to the 1991 Supreme Court ruling Board of Education v. Dowell, which—in a 5-3 decision—lifted integration-busing court orders (Thurgood Marshall, on the verge of retiring, wrote the dissenting opinion) busing has been jettisoned as a relic, and the busing-integrated high school I went to, John Shaw High School, was shuttered.

There’s been a retrenchment of racial segregation throughout the South—and elsewhere too (see this article about Omaha dividing into separate segregated school districts at the request of the black minority). The reasons for re-segregation are complex and difficult to talk about; it’s clear that both communities are fueling this trend. Black communities may dislike sending children on hour-long bus rides, among other things, while white communities may want to wall off their children from the kinds of things going on in the black ghettos (which may or may not be a true perception, because in MY high school, the white kids were the ones dealing drugs).

According to a 2003 Harvard study, following the flurry of court rulings against busing, black students were less integrated at the turn of the millennium than in 1970, “a year before the Supreme Court authorized the busing that became a primary way of integrating schools.” These trends have accelerated unabated since 2000. In many of these segregated communities, a kid has a better chance of winning the lottery than meeting a person of different ethnic background than them. It looks as though our broken judiciary will allow entire states to re-segregate, decades of progress down the tubes, because we’ve made the democratic choice for that kind of society. And in a democracy we should be able to choose that; but let’s not be blind to the destructive potential of segregation: the damage to the children socially and emotionally, the distancing of racial communities, the retrenchment of a U.S. caste system. A growing body of social science research is reaching the conclusion that school desegregation should get some credit for the drop in urban crime in the ’90s and ’00s, and that the rise in crime in recent years can be partly blamed on re-segregation (Source: Slate: Resegregation has led to a spike in violent crime).
We need to be honest about the prejudice, the pre-judging we’re all capable of, and try and do what’s right. Separate but equal can never be equal, and invites a myriad of problems.

My younger brother Jamie, who’s also on a vent, said of visiting one high school, “I felt like the little white chunk no one wants at the bottom of the can o’ pork ‘n beans.”
That isn’t good, but it is the reality in the 2000s and 2010s….

Mobile has its first black mayor now, and peace and negotiation is still the order of the day for the most part, but in places like Atlanta and New Orleans the intensifying of segregation has communities on both sides simmering with racial tension. Racial violence in Atlanta isn’t yet “only of interest to historians.” Economic and social segregation in New Orleans, not to mention the strict geographic segregation—so extreme you wouldn’t believe it—has racial discord at all time highs. Hurricane Katrina (which I barely survived in Mobile) not only devastated New Orleans bow to stern, it opened up a LOT of old wounds. Surprisingly virulent racist memes have come back, big time; too often, Louisiana whites have welcomed that stuff back with open arms.

Libertarians like Ron Paul are right to point out that laws alone can’t turn hearts and minds around, and that’s an important point, but laws provide enforcement of equal opportunity against the worst injustices. Laws that have dis-empowered the most egregious offenders, especially vis a vis voting rights and equality under the law, have driven most of the progress we’ve seen.
Bork and Easterbrook’s brief provide a window into how we got to where we are. And where we are, and the legal opinions behind it, deserve re-examination.

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